BG C.S.H.B. 1039 75(R)BILL ANALYSIS PUBLIC HEALTH C.S.H.B. 1039 By: Naishtat 4-2-97 Committee Report (Substituted) BACKGROUND In 1983, the Texas Mental Health Code was rewritten to set up a mental illness commitment standard that required one of three alternative grounds as basis for the imposition of courtordered mental health services. To order commitment, a mental health court has to find, by clear and convincing evidence, that a mentally ill person is likely to cause serious harm to self or others or must be in such a deteriorated condition as to be considered "dangerous." The lack of guidelines for the court when requiring out-patient services and lack of clarity as to the meaning of the language in the deterioration may allow in-patient commitment of mentally ill persons who are not dangerous. Thus, the current commitment procedure structure has been criticized for causing persons to be placed into in-patient settings when out-patient treatment would be more appropriate. PURPOSE CSHB 1039 changes the commitment standards by clarifying the meaning of the deterioration clause and restructures the commitment standards for in-patient mental health care. The bill also adds safeguards to the outpatient commitment criteria. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 574.007, Health and Safety Code, as follows: Subsection (b) adds to the requirement concerning a statement to the proposed patient's attorney by inserting the word "inpatient" into the term "extended mental health services" to clarify what provisions of this subtitle will be relied on at the hearing. Adds that "reasons voluntary outpatient services are not considered appropriate'' must be included in the statement. Revises the clause regarding a brief description of why court-ordered mental health services are required to specify "inpatient or outpatient, as appropriate." Makes conforming changes. Subsection (d) is added to require the county or district attorney to inform the proposed patient as specified whether there will be a request a commitment to inpatient or outpatient services. Allows the proposed patient, the proposed patient's attorney, and the county or district attorney to agree to waive the requirement of this subsection. Stipulates that the waiver must be made by the proposed patient orally and in the presence of the court, or signed, in writing, and sworn to under oath as specified. SECTION 2. Amends Section 574.011(a)(7), Health and Safety Code, regarding necessary assessments to be included in a certificate of medical examination for mental illness. Provides that the physician's opinion regarding a patient being likely to cause harm as specified, or suffering as specified, experiencing mental or physical deterioration of functional ability as specified, and not able to make a rational, informed decision as specified, be among the required contents of the certificate. Makes conforming changes and nonsubstantive language changes. SECTION 3. Amends Subchapter A, Chapter 574, Health and Safety Code, by adding Section 574.014 as follows: Sec. 574.014. COMPILATION OF MENTAL HEALTH COMMITMENT RECORDS Subsection (a) requires the clerk of each court, as specified, to provide the court each month with a report of the number of applications for commitment orders for involuntary mental health services filed and the disposition of those cases, including the number of orders for inpatient and outpatient services. Requires each court to summarize the reports and make the summary available to the Texas Department of Mental Health and Mental Retardation. Subsection (b) establishes that subsection (a) does not require the production of confidential or protected information as specified. SECTION 4. Amends Section 574.034, Health and Safety, as follows: Subsection (a) amends language to restructure the temporary commitment procedure by establishing that the judge and not a jury is responsible for such orders. Revises the wording of the allowed action of the judge from may "determine that" to may "order" and then conforms the wording regarding the patient receiving rather than requiring mental health services. Adds the word "inpatient" to distinguish that the mental health services referred to in this subsection are court-ordered temporary inpatient services. Amends language regarding the standard by which a mentally ill patient, by clear and convincing evidence, is found to exhibit distress or inability as specified. Subsection (b) is added. Allows the judge to order a proposed patient to receive courtordered temporary out-patient services only if specified conditions are met. Subsection (c) is amended to stipulate that if it is found that the proposed patient meets the commitment criteria prescribed by subsection (a), the judge or jury must specify which criterion listed in (a)(2) is the basis of the decision. Subsection (d) clarifies that confirming evidence of a recent overt act or continuing pattern of behavior include either the likelihood of serious harm to self or others or the proposed patient's distress and deterioration of ability to function. Makes conforming changes. Subsection (e) establishes that clear and convincing evidence under Subdivision (b)(2) must include expert testimony and, unless waived, evidence of a recent overt act or a continuing pattern of behavior as specified, with the additional condition concerning the proposed patient's inability to participate in outpatient treatment services effectively and voluntarily. Subsections (f),(g) and (h) make conforming changes. Amend terminology for mental health services to add the words "inpatient or outpatient." Subsection (i) allows the judge to advise, but prohibits the judge from compelling, the proposed patient to receive treatment with psychoactive medication as specified; to participate in counseling; and refrain from the use of alcohol or illicit drugs. SECTION 5. Amends Section 574.035, Health and Safety Code as follows: Subsection (a) amends language pertaining to an order for extended mental health services to allow the judge to order such an action. Omits words regarding the right to a jury being waived. Adds the word "inpatient" to the reference to court-ordered extended mental health services. Applies the same deterioration clause changes stated in SECTION 4 to the extended commitment procedure criteria. Subsection (b) provides the same changes and conditions allowing a judge to order temporary mental health services stated in SECTION 4 and applies them to court-ordered extended outpatient mental health services. Adds prerequisites that the proposed patient's condition is expected to last for more than 90 days and that the court- ordered inpatient mental health services under this subtitle or under Section 5, Article 46.02, Code of Criminal Procedure, for at least 60 consecutive days within the past 12 months. Subsections (c) provides the same stipulation as was provided in SECTION 4 regarding the specification of commitment criteria. Subsection (d) establishes that the jury or judge is not required to make the finding under Subsection (a)(4) or (b)(2)(F) if the proposed patient has already been subject to an order for extended mental health services. Makes conforming change. Subsection (e) clarifies that for evidence under subsection (a) to be clear and convincing, it must include expert testimony and evidence of a recent overt act or a behavior pattern that confirms either the likelihood of serious harm to self or others or the proposed patient's distress and functional deterioration. Makes conforming changes. Subsection (f) established that under Subdivision (b)(2), clear and convincing evidence must include expert testimony and evidence of a recent overt act or a behavior pattern that confirms the proposed patient's distress, deterioration of ability to safely function independently within the community, or to participate in outpatient treatment effectively and voluntarily. Makes conforming changes. Subsections (g) (h) and (i) make conforming changes and add the words "inpatient or outpatient" to references of extended mental health services. Subsection (j) provides the same stipulation as was in SECTION 4 concerning a judge being allowed to advise, but not compel, a proposed patient to do certain things. SECTION 6. Amends Section 574.036(e), Health and Safety Code to allow a judge to enter an order, for inpatient care as specified, if the trier of facts finds that the commitment criteria prescribed by Sec. 574.034(a) or 574.035(a) is met or to enter an order committing the person to outpatient mental health services if criteria is met per Section 574.034(b) or 574.035(b). Omits language requiring participation in other specified mental health services. SECTION 7. Amends Section 574.065(a), Health and Safety Code, regarding modification of the order for out-patient services if there is court determination that the patient "meets" rather than "continues to meet" applicable criteria of the mental health code as specified to conform with the changes made in SECTIONS 4 and 5. Omits references to the patient not complying with the court order and being in such a deteriorated condition that outpatient services are no longer appropriate. SECTION 8. Establishes that this Act applies to a commitment proceeding that begins on or before September 1, 1997, the effective date of this Act. Any proceedings which began prior to this effective date are governed by existing law which is continued in effect for that purpose. SECTION 9. Emergency Clause. COMPARISON OF ORIGINAL TO SUBSTITUTE Three first three sections in CSHB 1039 are additions to the original. They have been added to amend requirements in temporary commitment proceedings, to ensure that the deterioration standard used for orders for extended mental health services be exhibited by the proposed patient's inability to provide for basic needs and safety, and to provide a system for the compilation of nonconfidential mental health commitment statistics. SECTION 4 of the substitute bill is an amended version of SECTION 1 of the bill as filed. CSHB 1039 amends Sec. 574.034(e), Health and Safety, to conform the court's findings of a proposed patient's deterioration with the other amendments to the temporary commitment procedure, by adding clarification to the term "deterioration of ability to function" with the phrase "independently to the extent that the proposed patient will be unable to live safely in the community." SECTION 5 of CSHB 1039 is the same as SECTION 2 of the original bill, except that Sec. 574.035(f), Health and Safety Code, is also amended to conform deterioration findings. The subsequent sections of CSHB 1039 are renumbered to conform, but are identical in content to HB 1039.